My direct and indirect experience with trial court judges is that they are mini-dictators/monarchs in their courtrooms, and that's probably a good thing. Unlike the vast majority of real dictators, they can be benevolent, but even if that's not their default personality, you still want someone who will occasionally stand up against powerful individuals, organizations, and the government itself. Trifle with them and find out what happens.
So we have a Montana trial court issuing today an opinion in favor of youth plaintiffs, saying Montana's law forbidding consideration of climate change impacts violates Montana's constitution requiring environmental protection. The kicker is that the state defendant spent all of one day in court presenting its side, after months of evidentiary proceedings.
I'm sad to say I don't know Montana law specifically and look forward to reviews by state experts. I am reading the opinion though and thought I'd throw out a few thoughts:
*fundamentally this is about resolving a legal conflict between a state statute saying 'ignore climate change' and the state constitution saying the state shall "maintain and improve a clean and healthful environment in Montana for present and future generations." Its direct relevance to other states requires a similar conflict. Indirectly, from a legal realism perspective, it might have more effect on nudging judges to take climate change seriously.
*lots of evidentiary battles in pretrial activity followed by only one day of testimony by the state in defense (plaintiffs had to have some serious financial resources to do this, btw). I'd love to be a fly on the wall at the state to understand the internal decision-making on that tactic. It feels like a political decision that's pretty close to a forfeit, and I doubt it went over well with the judge.
*the factual findings may be more important than they first appear, basically reiterating well-known facts about climate change and the harm it has on the environment and people. That might sound like non-news, but barring reversal on appeal - and appeals very rarely reverse factual findings - those findings become the "law of the case" requiring Montana for purposes of the case to acknowledge climate change is real, anthropogenic, and harmful.
*the concept of collateral estoppel/issue preclusion might also apply, and this is where a Montana legal expert would be helpful. That legal principle says once an issue has been litigated, it's done, and the party that lost can't try it again in a different proceeding. In other words, Montana could be stopped from denying climate reality not just in this case but in any other case (barring new evidence, which probably would have to overcome a significant legal hurdle to reopen the issue).
*I'm curious how easy it is to amend the Montana constitution. I expect we'll find out.
*the procedural stuff at the end saying the statute is subject to strict scrutiny etc. is the hardest to assess, but it's key to whether the case becomes a footnote or whether it has actual legal teeth in Montana.
Some other stuff:
*Svante is in the findings! Paragraph 74 - gotta love that, helping laying down the marker that CO2's role is well-understood and only became politicized by denialists, when the truth became inconvenient. Keeling Curve is there as well.
*because the plaintiffs claimed mental health damage from climate change's impacts, Montana demanded the right to conduct adversarial mental health examinations of these under-age minors (page 5). The judge told the state to take a hike. In circumstances where you're trying to assess damages, an examination is reasonable, but here it really isn't. The state is acting like a jerk, and I doubt it helped with the judge.
*findings about the under-age plaintiffs make them very appealing, what lawyers call "good facts" that hopefully make the court want to find ways to support your side. If they're willing and capable, I think these kids could be good media emissaries.
*twice the state tried to get Montana's state Supreme Court take the case away from the trial court, and the Supreme Court refused. Something else that is likely to have annoyed the judge.
*Glacier National Park, unsurprisingly, played a major role in the opinion. Glad to see it, and I did a volunteer vacation for glacier monitoring and blogged about it, way back when.
*plaintiffs are getting attorney fees and costs, which sounds administrative but is going to be a lot of money and is vital to the future success of cases like this. I suppose that could be reversed though if the case gets reversed on appeal.
Awesome! Once in a long while the good guys win one.
ReplyDelete"*because the plaintiffs claimed mental health damage from climate change's impacts, Montana demanded the right to conduct adversarial mental health examinations of these under-age minors (page 5).
ReplyDeleteThe judge told the state to take a hike."
An appellate judge in the Western coal and oil patch might ask which contributed more actionably to the minor plaintiffs claimed mental health damage :
Experiencing 10 millikelvon a year for 20 years on the high plains of Montana, or being lambasted nightly by an escalating cadence of existential threats on public television and social media?
For instance:
ReplyDeletehttps://vvattsupwiththat.blogspot.com/2023/07/with-guardian-weather-headlines-who.html
As someone who grew up during the Cold War, I'm personally not convinced the climate change trauma is as bad as wondering if any loud bang you hear outside is the signal that it's all over. But that doesn't make climate change trauma imaginary.
ReplyDeleteAnd it doesn't matter in court - defendants don't get to say X or Y is worse for plaintiffs then what we did, therefore we should get away with it. Especially given that in this case it's whether the state government can violate its own constitution.
Note that the scope of this is Montana only.
ReplyDeleteMontana can change the State Constitution and be able to block climate change consideration all they want.
Or they can add a climate review to fossil fuel projects.
I'm more worried that this ruling can and will be used to block other things, like wind and solar farms, transmission lines.
Brian's clod war aversion to loud reports recalls Edward Teller's being asked :
ReplyDelete"Where would you want to be if an H-Bomb went off?"
and responding :
"Standing next to someone who says 'What was that?'"
Well, of course direct war is challenging in a way knowledge of a degrading future isn't (until one faces direct consequences, which is happening more and more often these days), but there is the possibility of war ending. Global warming/climate change's multiple toxicities will only get worse in the foreseeable ... time to act was over 40 years ago. The lies and corruption were intentonal; the facts were available.
ReplyDeleteIf, as some insist, burning 1000 tons of fossil fuel equals
ReplyDelete"one future death"
How pray has population persisted in growing right on through the exponential Teratonne growth of fossil fuel combustion in the centuries since Ben Franklin invented his energy saving coal stove?
TCW: If, as some insist, burning 1000 tons of fossil fuel equals
ReplyDelete"one future death"
How pray has population persisted in growing right on through the exponential Teratonne growth of fossil fuel combustion in the centuries since Ben Franklin invented his energy saving coal stove?
BPL: Because population can increase despite a high death rate if it has an even higher birth rate. You can't list only expenditures and ignore income. Accountants who do that wind up in jail.